The usefulness of appeals and the make-up of the appeal panel

We all know the ACAS Code principle that on appeal, it should ideally be heard by someone more senior to the person who made the original decision and that the person selected for the task should not have been involved in the matter, but we all know the life isn’t always straightforward either. The case of Adeshina v St Georges University Hospitals Foundation NHS Trust shows the Tribunals appreciate this. It also illustrates the usefulness of an appeal in correcting procedural  flaws.

A was a principal pharmacist, British, of Nigerian origin and black African ethnicity. She had been involved in leading a project to alter the way in which prison pharmacy services were provided and her resistance to the project formed the background to her dismissal. Various allegations of misconduct were raised against her, including unprofessional and inappropriate behaviour during a senior management meeting and failure to cooperate with, support and lead the service change. Disciplinary proceedings were initiated and these were conducted by a line manager we shall call X.

A was dismissed for gross misconduct, and she brought an internal appeal. The appeal was heard by a panel of three senior managers and an independent adviser on pharmacy matters. A objected to the appointment of one of the members of the panel, L, who had been involved in an operational policy document which was part of the case against A and who was also a mentor to the victim of one of A’s alleged acts of misconduct. The panel rejected A’s concerns but acknowledged that another panel member, J, might have been substituted by another manager as he was more junior than X and reported to her. However, A did not object to J’s presence on the panel.

The appeal took the form of a complete rehearing of the matter. (This is an important opportunity to correct any mistakes that had been made at the original hearing).

The panel upheld the decision that A’s conduct amounted to gross misconduct, and that dismissal was the appropriate sanction.

A brought a variety of claims, including for unfair dismissal. The claims were all dismissed by the employment tribunal.

The tribunal found that there were flaws in the first stage of the disciplinary process, which meant that X could not have held a reasonable belief in A’s misconduct. For example, they found that X’s decision had been partly based on matters which they hadn’t given A an opportunity to comment on in the process. However, it found that these flaws were corrected by the appeal process, which had given proper consideration to all the evidence and reached conclusions that fell within the range of reasonable responses. Taken overall, the dismissal was, therefore, fair.

A appealed to the EAT. She argued, among other things, that the original decision to dismiss her was flawed in such a serious and multifaceted way that either it could not be remedied on appeal. She argued that the tribunal erred in law in failing to look at the totality of the process, failing to weigh the gravity of the flaws. As to the fairness of the appeal, A submitted that the composition of the panel was in breach of the standards laid down by the Acas Code of Practice on Disciplinary and Grievance Procedures, as supplemented by the Acas Guidance, and that there were alternatives that the Trust could have adopted.

The EAT decided that the original tribunal was entitled to find that the composition of an appeal panel did not render a dismissal unfair, where not all members of the panel met the standards set out in the Acas Code of Practice on Disciplinary and Grievance Procedures. The tribunal was entitled to find that the inclusion on the panel of a manager who had had some limited previous involvement with the circumstances of the gross misconduct under investigation did not amount to a serious flaw, and that an objective and informed observer would not perceive any bias. The tribunal was also entitled to conclude that the inclusion of a panel member who was junior to the original decision-taker was not a fatal flaw when viewed in context – although, as the Acas Code advises, the person hearing an appeal should usually be senior to the original decision-taker, the tribunal was entitled to look at the substance and not merely the form of the process and conclude that there was no unfairness.

In addition, while there were serious procedural failings at the first stage of the process, the tribunal had paid adequate regard to the nature and extent of the flaws and had not erred in concluding that they had been remedied on appeal.

It was interesting that the EAT felt very senior managers will mentor and have involvement in the management of a number of employees and may well also sit on disciplinary and appeal panels in which those employees might be involved. An observer would understand that to require an employer to avoid any such link would be both unrealistic and undesirable: employers are entitled to want to utilise the knowledge and experience of relevant members of the senior management team in this way.

On the question of J, a subordinate manager to the original decision-maker, appearing on the appeal panel, Acas’s general advice is right in saying that the person hearing an appeal should be senior to the original decision-taker. That will generally be right given that the person hearing the appeal has to be able to overturn the decision taken below. More than that, there may be a concern that a subordinate might be unduly influenced if considering a decision taken by a manager to whom he or she reports. However, this has to be seen in context. As the Trust pointed out, J, who was himself a general manager of some seniority, was one of a panel of three. The panel was chaired by a director and included another director, both senior to A, and received independent advice from a senior pharmacy professional. Those matters took this case outside the circumstances specifically considered by the Acas Code and the non-statutory guidance. Moreover, while the involvement of a more junior employee might not have been ideal, the tribunal was entitled to look at the substance and not merely the form.

Of course, it will be easier to argue a lack of bias and fairness where there is an appeal panel made up on more than one person. It might be easier for an employee to attack the choice of appeal person where there is just one decision-maker.

It is worth noting that whilst there is no requirement to have a complete rehearing of the matter at appeal it is probably the safest way to ensure errors are corrected.